Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered RegulationsSCHEDULE 13A Order 75B, rule 47
36. (1) This rule applies to an application made before 23 June 1993 for a winding up order under section 461 of the Corporations Law other than an application to which rule 37 in this Schedule applies.
(2) On filing and serving an application under this rule, the applicant shall also file and serve—
(a) an affidavit made not earlier than 7 days before the application is filed, setting out a statement by a person who has, not earlier than 3 days before the date on which the affidavit is made, undertaken a search of the company records maintained by the Commission, as to whether any winding up application is pending or any winding up order has been made against the company;
(b) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information (within the meaning of Order 75B), which may be in accordance with Form 128; and
(c) an affidavit made not earlier than 7 days before the application is filed setting out—
(i) any other material facts to be relied upon by the applicant in support of the application; and
(ii) the grounds of the application and a reference to the provision or provisions of section 461 on which the applicant relies.
(3) An affidavit made under paragraph (2) (c) shall be made by a person who can depose of his or her own knowledge to at least some of the grounds relied upon for the winding up of the company.
(4) As soon as is practicable after filing the application and any affidavits in support, and in any event not later than 14 days after the date of filing, the applicant shall serve a signed and sealed copy of that application and affidavits on which it relies on—
(a) the company, in a manner permitted by section 220; and
(b) if the company is in the course of being wound up in a voluntary winding up—the liquidator of the company.
(5) Unless the Court orders to the contrary, notice of the application in accordance with Form 93 shall be published in the manner prescribed by rule 104 not earlier than 3 days after the date a copy of the application was served on the company and not later than 7 days before the date appointed for directions under Order 2A, rule 8.
(6) The applicant—
(a) may, at the same time as filing the application and any affidavit in support, lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator; and
(b) shall, within 14 days of filing, serve a copy of any such nomination on the persons specified in paragraph (4) (a).
(7) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 2A, rule 8 or a day subsequently appointed for directions in the proceedings.
(8) If a person on whom the application has not been served intends to appear on the day appointed for directions under Order 2A, rule 8, he or she shall—
(a) file a notice of appearance in accordance with Form 79; and
(b) serve a copy of the notice on the applicant not later than 2 days before the day appointed for directions.
(9) At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
(10) Without limiting any right of inspection otherwise available under Order 66, rule 11, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, shall—
(a) be permitted by the Registrar to inspect an application to wind up the company, and any affidavits in relation to the application that are in the Registrar's custody; and
(b) on payment of the prescribed fee—be provided with a copy of those documents.
(11) Form 79, 80, 88, 93 or 128 used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.
37. (1) This rule applies to an application made before 23 June 1993 for a winding up order—
(a) under section 460—on the ground that a company is unable to pay its debts;
(b) under paragraph 461 (a) if—
(i) a company has, by special resolution, resolved that it be wound up; and
(ii) an officer of the company filed an affidavit at the time the application was made, deposing that the company is unable to pay its debts as they become due; or
(c) under paragraph 460 (2) (a)—on the ground that a company on which demand was served before 23 June 1993 is unable to pay its debts.
(2) On filing and serving an application under this rule, the applicant shall also file and serve—
(a) an affidavit made not earlier than 7 days before the application is filed setting out a statement by a person who has, not earlier than 3 days before the date on which the affidavit is made, undertaken a search of the company records maintained by the Commission, as to whether any winding up application is pending or any winding up order has been made against the company;
(b) an affidavit made not earlier than 7 days before the application is filed setting out the prescribed information (within the meaning of Order 75B), which may be in accordance with Form 128;
(c) an affidavit setting out—
(i) a statement of the debt alleged and details of how and when it was incurred;
(ii) a statement that the company is indebted to the applicant for the amount claimed;
(iii) details of any judgment obtained by the applicant against the company;
(iv) a statement of the grounds relied upon to show that the company is unable to pay its debts; and
(v) a statement of any other material facts to be relied upon by the applicant in support of the application; and
(d) an affidavit proving service of a notice under subsection 460 (2), if applicable, together with copies of any documents exhibited to that affidavit.
(3) Unless the Court orders to the contrary, an affidavit made under paragraph (2) (c) shall be—
(a) made by a person who can depose to the indebtedness of the company to his or her own knowledge; and
(b) served on the company, with the application.
(4) As soon as is practicable after filing the application and the affidavit in support, and in any event not later than 14 days after the date of filing, the applicant (unless it is the company) shall serve a signed and sealed copy of that application and the affidavits on which it relies, on—
(a) the company, in a manner permitted by section 220; and
(b) if the company is in the course of being wound up in a voluntary winding up—the liquidator of the company.
(5) Unless the Court orders to the contrary, notice of the application in Form 93 shall be published in the manner prescribed by rule 104 not earlier than 3 days after the date the application was served on the company and not later than 7 days before the date appointed for directions under Order 2A, rule 8.
(6) The applicant—
(a) may, at the same time as filing the application and any affidavit in support, lodge a nomination in accordance with Form 88 of an official liquidator who, if an order for the winding up of the company is made and unless the Court is satisfied that some other official liquidator should be appointed, will be appointed as liquidator; and
(b) shall, within 14 days of filing, serve a copy of any such nomination on the persons specified in paragraph (4) (a).
(7) If the Court thinks fit, it may hear and determine an application for the winding up of a company on the day appointed for directions under Order 2A, rule 8 or a day subsequently appointed for directions in the proceedings.
(8) If a person on whom the application has not been served intends to appear on the day appointed for directions under Order 2A, rule 8, he or she shall—
(a) file a notice of appearance in accordance with Form 79; and
(b) serve a copy of the notice on the applicant not later than 2 days before the day appointed for directions.
(9) At the first directions hearing or at any subsequent directions hearing, the Court may direct the applicant or its solicitors to prepare and file a list in accordance with Form 80 of the names and addresses of persons who have given notice of their intention to appear in the proceedings.
(10) Without limiting any right of inspection otherwise available under Order 66, rule 11, a person who is or claims to be a contributory, member, creditor or officer of a company, and who makes application in a form approved by the Registrar, shall—
(a) be permitted by the Registrar to inspect an application to wind up the company, and any affidavits in relation to the application that are in the Registrar's custody; and
(b) on payment of the prescribed fee—be provided with a copy of those documents.
(11) Form 79, 80, 88, 93 or 128 used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.
41. (1) If an applicant in proceedings in relation to a winding up order applied for under section 460 or 461 before 23 June 1993—
(a) fails to take all steps required under Order 75B and this Schedule to be taken preliminary to the hearing;
(b) seeks the leave of the Court to discontinue the proceedings;
(c) consents to the proceedings being dismissed;
(d) does not appear at the hearing of the proceedings; or
(e) does not seek or does not obtain a winding up order at the hearing;
the Court may, subject to the Corporations Law, make orders for the further conduct of the proceedings.
(2) Orders made under subrule (1) may—
(a) be made on application by a person who falls within the classes of person specified in subsection 462 (2), as in force before 23 June 1993;
(b) be made on such terms and conditions as the Court thinks fit;
(c) include an order in accordance with Form 97, substituting the person who applied for the orders for the person who was formerly the applicant in the proceedings; and
(d) if the Court sees fit, include an order requiring publication of a notice in accordance with Form 98 in the manner prescribed by Order 75B, rule 104 or in such other manner as the Court directs.
(3) This rule does not limit the powers of the Court under Order 19.
(4) Form 97 or 98, used in accordance with this rule, and appropriately amended as the circumstances require, is taken to be in compliance with this rule.